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Bullying In Workers Compensation Claims

Tuesday, September 13, 2016

INTRODUCTION

The Macquarie University Centre for Workforce Futures conducted an enquiry in relation to allegations of bullying in WorkCover NSW system during 2014 and 2015.

The survey found that there was a wide spread culture of bullying and that more than a quarter of workers who had claimed workers’ compensation in NSW experienced some bullying by WorkCover, the insurer, scheme agents, employers or rehabilitation providers.

The report goes on to state the following:-

“It is unfortunate, yet well understood, that workers who claim compensation for work place injuries are likely to be subjected to stigma, bullying and discrimination. The study confirmed that workers are, indeed, discriminated against and [have suffered the stigmatisation] of being a worker’s compensation claimant. …….. Several workers explained that they had been “good workers” who did the right thing” and worked hard. Yet they described how as soon as they made a claim for worker’s compensation the employer’s attitude towards them changed. Two workers even claimed that they had been blacklisted by their employer so their colleagues and friends were prohibited from making contact with them.”

The survey found that almost a quarter of all those who had made a claim for workers’ compensation had been bullied, threatened, or intimidated by the insurer during the life of their claim. In our practice we regularly see this bullying behaviour and unfortunately this bullying trend seems to be worsening. There is increasing hostility towards claimants in the workers’ compensation system as well as failure to support injured workers in their endeavours to return to work.

Our clients often report that their insurer or case managers have made derogatory comments about why they have not returned to work or why they have not been able to increase their hours of employment. These comments imply that the insurer thinks the injured worker is somehow “bludging” or not trying their best to return to work.

This behaviour makes the injured workers feel like they are a criminal, rather than someone who has been the subject of an unfortunate accident. Most people do not wish to sustain an injury at work and most people wish to get back to meaningful work as soon as possible. There is no doubt that a persons’ psychological health dramatically improves when performing meaningful work.

However, some injuries prevent people from returning to their pre-injury duties. Other times the workers’ injuries may take a significant period of time to heal which means that the worker takes a very long time to return to work on restricted light duties, let alone on a full time basis. The insurers’ attitude seems to be one where they wish to return people to any type of work as soon as possible following an injury, no matter what the consequences, even when such a return to work has been demonstrated by the workers’ doctors to be detrimental to their health.

A favourite tactic of the insurer is to arrange a “case conference” with the injured worker and their nominated treating doctor. The stated purpose of the case conference is to discuss injury and treatment with the nominated treating doctor and the injured worker so a plan can be arranged in relation to a graduated return to work. However, what really occurs at these meetings is the claims officer placing great pressure on the nominated treating doctor to change the WorkCover Certificate of Capacity to either certify a worker fit for suitable duties or to increase the hours and the duties that the worker is fit to undertake. This pressure can be in forms of suggestions. For example, the claims officer may suggest that if the doctor does not update the certificate the workers’ benefits may be affected.

For some reason, nominated treating doctors often listen to the claims officer rather than relying on their own clinical judgment to determine the nature and type of duties that are suitable.

Often injured workers are returned to work well before they have recovered from the injuries which as a direct consequence usually results in further or additional injury.

WHAT CAN I DO IF I AM BEING BULLIED AND PRESSURED BY MY CLAIMS OFFICER

There are a number of things you can do to try and alleviate this bullying and they include:-

  1. Limiting the amount of direct contact you have with the claims officer over the phone. The claims officer will be more reluctant to put in writing suggestions that an injured worker is not making their best effort to return to work.

  2. If a case conference has been arranged with your nominated treating doctor, you should meet with the nominated treating doctor before the claims officer is allowed into the meeting. You have the right to refuse the claims officer to attend with you when you are talking to your nominated treating doctor about your injury, condition, and treatment. At that time you should raise the issue of your work capacity with your nominated treating doctor and advise them that it is likely that the claims officer will try and pressure the doctor to increase the suitable duties and hours on the WorkCover Certificate of Capacity. If you have agreed with your nominating treating doctor before the claims officer enters the meeting what are the appropriate suitable duties and the hours you can perform then the doctor is unlikely to change his or her mind.

  3. If the bullying continues you should make a complaint by email to the claims officer’s supervisor within the workers’ compensation insurer. This may not have a great effect on stopping the bullying as there appears to be a culture within insurers to condone such bullying however it does provide a paper trail of complaints.

  4. If a complaint to the supervisor does not work, then a complaint should be made to the WorkCover Independent Review Officer (WIRO) on 13 94 76 or a complaint can be submitted online at www.wiro.nsw.gov.au. WIRO’s role is to assist injured workers with any disputes, complaints or issues that they have with workers’ compensation insurers.

  5. If WIRO is unable to assist further with your complaint then you should contact an experienced accredited specialist in personal injury law who may be able to assist you with lodging an Anti-Discrimination Act claim or such similar proceedings.
GARLING AND CO 2016
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